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Whether landlord can seek eviction decree if there is clause for compensation on account of damage to building?

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 449 of 2007

Decided On: 23.01.2008

Sadguru Caterers and Ors.
Vs.
Hashmatbi Abdulkadar Shaikh

Hon’ble Judges/Coram:J.H. Bhatia, J.

Citation: 2008 (5) Bom CR 230

1. To state in brief, the present petitioners are the original defendants and the respondent is the original plaintiff. Admittedly, the defendants had taken the suit property on rent under a lease deed dated 30.3.1970 from one Abdul Sattar Haji, who was the owner of the said property. The building was taken on rent for running a hotel and lodge. The original landlord Abdul Sattar expired and after his death, Hashmatbi, who was the legal heir of the original landlord, filed the suit for eviction and possession against the defendants. The main contention of the plaintiff was that the defendants had made additions and alterations of permanent nature in the building which was taken on rent and, therefore, they are liable to be evicted under the Bombay Rents, Boarding & Lodging House Rates Control Act, 1947 (for short, “Bombay Rent Act”).

2. The suit was contested by the defendants contending that as per the terms of the lease deed, there is no complete prohibition from making any additions and alterations of permanent nature, but if by making additions and alterations of permanent nature in the building, the defendants would cause some damage to the building, the landlord could claim compensation. It was contended that due to certain additions made by the defendants, no such damage was caused to the building and, therefore, the plaintiff could not claim compensation. In any case, in view of the specific clause for the compensation on account of damage caused to the building, the landlord could not claim decree for eviction and possession. It was also contended on behalf of the defendants that the plaintiff, Hashmatbi is not the sole owner of the suit property leased out to the defendants. There are some other persons also who are co-owners of the property. Therefore, the suit is bad for non-joinder of necessary parties.

3. After hearing the evidence for both the parties, the learned trial court held that the plaintiff is the sole owner of the suit property and, therefore, the suit is not bad for non-joinder of necessary parties. While interpreting Clause (e) of the lease deed, the learned trial Court held that the said clause has three parts. In the first part, the tenant is entitled to make additions and alterations of temporary nature for using the property for the purpose of business. In the second part, there was complete prohibition against making any additions and alterations of permanent nature. In the third part there is provision that if such addition and alteration in damage to the building, the landlord to claim compensation. Having interpreted the said clause, the trial Court came to the conclusion that under the provisions of Section 13(1)(b), when the tenant has made any additions or alterations of permanent nature, without prior permission or consent of the landlord in writing, the landlord is entitled to seek decree for eviction and possession. With these findings, the suit came to be decreed against the defendants. The said judgment and decree was challenged by the defendants in Civil Appeal No. 308 of 2006. The appeal was also dismissed. Hence, the defendants have preferred the present Revision Application.

4. Heard learned Counsel for the parties. Perused the copies of the documents and the pleadings filed with the Revision Application.

5. Before dealing with the terms of the agreement and interpretation of Clause (e) particularly, it will be necessary to deal with the objection about non-joinder of necessary parties. The learned appellate Court had dealt with this question in detail. After going through the record, the learned appellate Court noted that after the death of the original landlord, one Rashidabi had filed Special Civil Suit No. 10 of 1971 against 8 persons, including Hashmatbi, who was the plaintiff in the present suit. The said suit was decreed and it was held that Rashidabi had 1/4th share in the property. In the Property Extract, name of Rahidabi was also shown in addition to the name of Hashmatbi and there also the share of Hashmatbi was shown to the extent of 3/4th share and that of Rashidabi to the extent of 1/4th share. The decree in Special Civil Suit No. 10 of 1971 also reveals that the property shown in para 1(b) consisting of three rooms were ordered to be given in possession of Rashidabi and her suit for declaration and injunction in respect of the remaining property was dismissed. In the present matter, the plaintiff pointed out that the property, which was given to Rashidabi as per the decree in Special Civil Suit No. 10 of 1971, has been excluded from the suit property in the present suit. In view of this, the learned appellate Court rejected the contention that the suit was bad for non-joinder of necessary parties. Even though Mr. Walawalkar raised this question of non-joinder of necessary parties during the arguments before this Court also, but it appears that he had no material to challenge the findings of the Courts below. I find that the learned Courts below and particularly the learned appellate Court has rightly rejected the plea of suit being bad for non-joinder of necessary parties.

6. There is no dispute that the lease deed was executed between the original landlord Abdul Sattar and the defendants on 30.3.1970. The property which was given on lease was a building described in para 1 of that lease deed and that building was known as “Poonam Boarding Lodging & Hotel”. Para 2 deals with different terms and conditions of the lease deed. The original document is in Marathi. Clause (e) of para 2 which is relevant has been correctly translated by the appellate Court in para 20 of the said judgment. It reads as follows:

The said premises has been taken by the party No. 2 i.e., tenant for lodging, boarding and hotel and in connection of his business the tenant has right to use the entire premises and for the said reason party No. 2 i.e., tenant is allowed to make alterations and partitions of temporary nature at his own costs in the said premises.

However, the tenant is not allowed to make any sort of alterations of permanent nature which will cause damage to the building and in case if it is so done by the tenant, party No. 1 i.e. landlord (owner) has to be compensated and tenant i.e. Sadguru Caterers will be liable to compensate the landlord.

There is sufficient evidence on record and there is no denial that after taking this property on lease, the defendants constructed and added 18 rooms and 12 toilet blocks without obtaining any consent or permission of the landlord in writing as well as without obtaining any permission or sanction from the Municipal Council. The record reveals that the landlord had made several complaints to the Municipal Council against such illegal and unauthorised additions and alterations by the defendants. It is also pointed out by the learned Counsel for the respondent that the Municipal Council had actually issued notice for taking action against such unauthorised structures, but in view of pendency of this litigation, the Municipal Council has not taken any action on the said notice so far.

7. Section 13(1)(b) of the Bombay Rent Act clearly provides that a landlord shall be entitled to recover possession of any premises if the court is satisfied that the tenant has, without the landlord’s consent given in writing, erected on the premises any permanent structure. There is no dispute that the additions and alterations made by the defendants on the suit premises are of permanent nature. Also there is no dispute that for making such additions and alterations, the defendants had not obtained consent of the landlord in writing. Therefore, the question is whether Clause (e) of para 2 of the lease deed gives such an authority to the landlord to make additions and alterations of permanent nature without obtaining consent of the landlord in writing.

8. On reading Clause (e) carefully, it becomes clear that the first part provides that the tenant was allowed to make alterations and partitions of temporary nature in the suit premises for carrying on the business of lodging, boarding and hotel in the entire premises. The second part has two limbs. In the first limb of the second part, it is clearly mentioned that the tenant is not allowed to make any sort of alterations of permanent nature which would cause damage to the building and the second limb of the second part provides that if the tenant would make any such additions and alterations of permanent nature, he would be liable to compensate the landlord. On plain reading of this clause it is impossible to come to the conclusion that there was express or implied consent given by the landlord to the tenant for making additions and alterations of permanent nature in the suit property. In fact, the plain reading of this clause indicates that the tenant is completely prohibited from making any additions and alterations of permanent nature and if he would make such additions and alterations of permanent nature and if that addition would cause damage to the property, the tenant would be liable to pay compensation to the landlord for the damage caused to the building. But only because the damage is not pleaded and the plaintiff has not claimed any compensation that does not mean that the plaintiff had impliedly given consent for such additions and alterations of permanent nature. Firstly, this clause completely prohibits additions and alterations of permanent nature by the tenant and certainly it does not mean any implied authority to the tenant to make additions and alterations. Section 13(1)(b) of the Bombay Rent Act clearly provides that additions and alterations of permanent nature cannot be effected by the tenant without consent of the landlord in writing. So the implied authority or permission is also completely ruled out under Section 13(1)(b) in the present case. As noted earlier, there is no written consent given by the landlord to the tenant for such additions and alterations of permanent nature, and therefore the tenant cannot take a plea that there is implied consent as per Clause (e) of the lease deed.

9. Taking into consideration the evidence on record, the terms of contract of the parties and the legal position, the landlady was entitled to seek eviction and possession of the suit premises in view of the provisions of Section 13(1)(b) of the Bombay Rent Act. I do not find any illegality, irregularity or perversity in the impugned orders passed by the Courts below. In fact, I find that both the Courts have rightly appreciated the evidence, oral as well as documentary, before coming to the conclusion that the plaintiff is entitled to decree for eviction.

10. In the result, the present Revision Application stands dismissed.

11. At this stage, the learned Counsel for the defendants-petitioners makes a request to stay the execution of decree for eviction for some reasonable time as the applicant intends to take this matter to the Supreme Court. In view of this request, the execution of the decree shall remain stayed for a period of eight weeks from this date. The defendants-petitioners shall not create third party interest over the suit property.

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